Relevant cases:

Nationwide Mutual Insurance v Darden

Secretary of Labor v Lauritzen

Zheng v Liberty Apparel Company Inc

Clackamas Gastroenterology Associates v. Wells

Famous Hollywood Doctor is an in demand plastic surgeon with a private practice in Beverly Hills, California. He has a fancy office where celebrities would arrive via a secret door in the back. Famous Hollywood Doctor developed an outpatient facelift procedure that provides patients with a quicker recovery time. Famous Hollywood Doctor trademarked the name "Turn Back Time Lift" for the procedure. Over the years, Famous Hollywood Doctor expanded the Turn Back Time Lift business into other states, forming Professional Corporations in each state, and contracting with doctors through those Professional Corporations.

Management Company is a Delaware Corporation that Famous Hollywood Doctor also formed to handle the administrative, non-medical functions for each of Famous Hollywood Doctor's Professional Corporations. Famous Hollywood Doctor is the sole owner of all of the Professional Corporations offering procedures under the Turn Back Time Lift trademark, and is also the sole owner of Management Company.

Plaintiff is a renowned board certified facial plastic surgeon. In 2015, Plaintiff was a professor at Harvard Medical School and is licensed to practice medicine in 20 states (including California, Nevada, New York and Massachusetts). Plaintiff was introduced to Famous Hollywood Doctor at a medical conference in Las Vegas. Plaintiff claims that Famous Hollywood Doctor requested that Plaintiff work with him in establishing "Turn Back Time Lift" clinics throughout the United States -- given Plaintiff's unique experiences, training and teaching credentials at Harvard. Famous Hollywood Doctor claims that Plaintiff approached Famous Hollywood Doctor because wages as a professor did not compare to income from full time medical practice.

That same year, in 2015, Plaintiff formed his own corporation Plaintiff Inc. which entered into an independent contractor agreement with Management Company for Plaintiff to act as the Chief Medical Officer & Medical Director for Famous Hollywood Doctor's Professional Corporations.

The written and executed contract stated in bold and underlined font that it was an "Independent Contractor Agreement." Famous Hollywood Doctor vetted all doctors to be hired by the Management Company (including Plaintiff). Famous Hollywood Doctor also testified at deposition "No doctor was ever terminated without me saying it's okay to do, so I would make the determination."

Plaintiff requested compensation of $950,000 annually, to which Management Company agreed. The Agreement between Plaintiff Inc. and Management Company was for a term of one year, and would automatically renew for an additional one-year period unless either party provided the other with written notice to terminate the agreement at least 30 days before the end of the term. The Agreement could also be terminated upon 30 days' written notice of either party, for any reason or no reason, or immediately upon written mutual agreement of the parties. The Agreement could not be modified, except in writing. Management Company paid Plaintiff on a monthly basis and issued Plaintiff an IRS Form 1099 at the end of each year he worked for the Management Company.

Because Plaintiff's children were finishing high school, Plaintiff did not want to move out of Boston. Management Company let Plaintiff use an office at the location for Famous Hollywood Doctor's Boston Professional Corporation. Management Company issued Plaintiff a laptop computer, a cell phone, business cards, and an email address. Management Company also furnished Plaintiff's office at the Boston Professional Corporation with a desk, chairs, computers and other office supplies. Management Company also hired an administrative assistant to support Plaintiff in his work for Management Company. Management Company reimbursed all of Plaintiff's expenses (except for Plaintiff's malpractice insurance) and made his travel arrangements. Management Company had no formal vacation policy. Plaintiff would usually just tell Management Company (via communication with Famous Hollywood Doctor) when Plaintiff would be on vacation.

Plaintiff was responsible for overseeing all the medical operations of Famous Hollywood Doctor's Professional Corporation that were managed by Management Company (which was all of Famous Doctor's Professional Corporations), provided training for doctors, reviewed patient complaints to avoid medical malpractice liability, and approved purchases of surgical supplies.

Plaintiff traveled extensively, with approximately 75-80% of his time spent away from his Boston home traveling to various clinics to give training and meeting with physicians. Initially, Plaintiff was involved with the interviewing and hiring of experienced physicians. To improve patient safety, Plaintiff implemented medical guidelines, and developed a special anesthesia regimen for the unmonitored office setting. To improve clinical outcomes, Plaintiff developed the variable incision facelift technique to yield better results on a wider variety of patients. Plaintiff's work became standardized throughout the country and later was used for physician recruitment in company advertising. Plaintiff also developed a variable incision process to facilitate quicker healing - such process was also standardized throughout the country and used in company advertising.

Defendants' View: In fulfilling his Medical Director role, Plaintiff worked independently, assessing the company's business needs for himself, and formulating and implementing a plan to meet those needs, without consultation with Famous Hollywood Doctor or anyone else. Plaintiff set his own schedule. Plaintiff was based in Boston while the rest of the senior business team was based in Beverly Hills, CA - Plaintiff visited the Beverly Hills headquarters for three to four days every 2 months. Plaintiff's work was subject to oversight by Famous Hollywood Doctor only, as the owner of the company, but Famous Hollywood Doctor did not direct Plaintiff's day-to-day activities (that is why the Management Company hired Plaintiff - Famous Hollywood Doctor is only one person and cannot do everything). In fact, Famous Hollywood Doctor and Plaintiff would often go several days without speaking to one another.

Plaintiff's View:Management Company required Plaintiff to visit company clinics to perform surgical teaching, monitor starting physicians, provide nationwide laser and fat grafting training, attend depositions, and produce medical guidelines. Plaintiff was required to report his findings to his supervisors, Famous Hollywood Doctor and President of the Management Company (also another doctor, but who was not licensed in California). The Management Company also required Plaintiff to attend executive meetings in Beverly Hills, California (where the Company was based), to attend depositions and litigation matters on its behalf; and to produce medical policies and guidelines. Plaintiff was required to attend weekly Executive meetings, remotely and in-person when requested.

Termination: In 2022, Plaintiff was terminated after raising concerns that it was illegal for a doctor not licensed in California (that is, President of the Management Company) to supervise Plaintiff in any way who actually was a licensed doctor in California. Plaintiff is now suing the Management Company for wrongful termination and whistleblower retaliation. Management Company says Plaintiff's claims are limited to the written contract, because Plaintiff was an independent contractor. During the timeframe that Plaintiff was contracted with Management Company, Plaintiff did not work anywhere else (he was too busy) and had no other source of income (other than his personal investments in the stock market and income from previously obtained patents).

Short Answer Question: Using IRAC, evaluate whether Plaintiff was an employee or independent contractor under the multi-factor "common law" test and the "economic realities" test. Evaluate all factors or elements of the test. If you believe any information is missing that might change the analysis, make sure to identify it and explain why it would make a difference. Cite to relevant case law from the reading. Explain any assumptions or reasonable deductions you have made based on the stated facts. Tell me what factor or factors you believe are most important to the analysis. If possible, analogize to any of the cases in the reading and notes that you believe will support your argument.